KBG Chambers KBG Chambers KBG Chambers KBG Chambers

News

Application to set aside under CPR 39.3 dismissed after solicitors misread email and trial goes ahead in Defendant's absence

19th June 2020

DJ Shanti Mauger sitting at Central London County Court dismissed an application brought by a Defendant to set aside judgment under CPR 39.3 and awarded costs to the Claimant after the Defendant's solicitors misread an email sent by the court the day before the trial and informed the client and its Counsel that the hearing had been adjourned.

The email from the court, sent to both parties, informed the respective solicitors that the matter was "unallocated due to judicial unavailability". The Defendant's solicitors wrongly took this to mean that the matter was therefore adjourned. At the hearing, the Claimant - who was in attendance - was awarded £13,500.00 in damages and costs. Upon receiving the Order, the Defendant's solicitors promptly applied to have the decision set aside arguing that there was a good reason why they failed to attend under CPR 39.3(5), and that they had reasonable prospects of successfully defending the claim.

 

Whilst agreeing that the Defendant had applied promptly and had reasonable prospects of success, DJ Mauger did not agree that the reason given by the Defendant for not attending was good enough. The email did not say that the trial had been adjourned and if there was any uncertainty, the Defendant's solicitors should have made further enquiries. She went on to consider the principles sent out in Denton and further cited court time and resources in her consideration of the third limb: all the circumstances of the case. The Claimant had given evidence on his claim and the court had heard submissions on both liability and quantum. She also noted that on the point of prejudice, the Defendant "was not without redress". 

The Defendant's application was dismissed and the Claimant was awarded his costs.

Charlotte Davies acted for the Claimant and was instructed by Charlotte Barker at Bond Turner.

« Back to news

Application to set aside under CPR 39.3 dismissed after solicitors misread email and trial goes ahead in Defendant's absence